| People v Carey |
| 2008 NY Slip Op 00307 [47 AD3d 1079] |
| January 17, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bruce Carey,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Peters, J. Appeals (1) from an order of the County Court of Albany County (Breslin, J.),entered July 12, 2006, which classified defendant as a risk level II sex offender pursuant tothe Sex Offender Registration Act, and (2) from an order of said court, entered September 11,2006, which denied defendant's motion to withdraw his consent to a risk level two designationpursuant to the Sex Offender Registration Act.
In 1983, defendant was convicted of two counts of promoting prostitution in the seconddegree and one count of promoting prostitution in the third degree. He was sentenced to anaggregate term of imprisonment of 7 1/3; to 22 years and was paroled in 1990. In 1992, he wasconvicted of, among other things, criminal possession of a controlled substance in the thirddegree and criminal sale of a controlled substance in the third degree. Defendant was sentencedto a prison term of 15 to 30 years, and he was required to also serve the remainder of his 1983sentence.
In 2006, as defendant was to be paroled, he received notification that he was to be assessedand assigned a final sex offender risk level determination pursuant to the Sex OffenderRegistration Act (hereinafter SORA; see Correction Law art 6-C). He appeared beforeCounty [*2]Court with counsel, waived a hearing and stipulatedto a risk level two assessment. When he later moved to withdraw the waiver and consent, CountyCourt denied his motion. Defendant appeals from the order assessing him as a risk level two sexoffender, as well as from the denial of his motion to withdraw.
Defendant contends that the requirement that he register under SORA violates both hissubstantive due process rights and his rights under the Equal Protection Clause because he isbeing released as a drug offender, not a sex offender. The People contend that he is subject toSORA through the application of Penal Law § 70.30 (1) (a) and (b).
By statute, all individuals convicted of a sex offense who are on parole, on probation orincarcerated and serving a sentence for such offense as of January 21, 1996 are subject to SORA(see Correction Law §§ 168-f, 168-g). Effective January 1, 2000, promotingprostitution in the second degree became a sex offense, thereby triggering SORA's registrationrequirements. SORA applied to any person convicted of such offense who had not completed theservice of his or her sentence as of that date (see L 1999, ch 453, § 29). Asdefendant was sentenced to an aggregate term of imprisonment of 7 1/3; to 22 years for thecrimes of promoting prostitution in the second and third degrees in 1983, his maximum sentencewould not have been served until 2005. Thus, he is subject to SORA.
We further reject defendant's assertion of ineffective assistance of counsel. Viewing thetotality of the circumstances at the time of the representation, we find that defendant wasprovided with meaningful representation. He and his counsel were aware that the Board ofExaminers of Sex Offenders had recommended that he be assessed as a risk level three sexoffender. In light of the evidence which could have been presented in support of the proposedrisk level, the stipulation reached was not inappropriate.
Mercure, J.P., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the orders areaffirmed, without costs.